Adjudicating the GM Food Wars: Science, Risk, and Democracy in World Trade Law

Yale Journal of International Law, Dec 2005

In August 2003, the United States, Canada, and Argentina initiated dispute settlement procedures at the World Trade Organization (WTO) against the European Communities (EC) for delaying approvals of genetically modified (GM) crops within its borders. A dispute settlement panel has convened to settle this matter, European Communities-Measures Affecting the Approval and Marketing of Biotech Products (Biotech Products), and the parties began submitting written complaints in May 2004. The dispute implicates not only technical concerns about barriers to trade but also political questions about democratic participation in the design and operation of the WTO. Its resolution will have consequences for the global development of agricultural biotechnology, the democratic regulation of risks in world trade, and, not least, the WTO's very legitimacy as an institution of global governance.

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Adjudicating the GM Food Wars: Science, Risk, and Democracy in World Trade Law

Issue 1 Yale Journal of International Law Adjudicating the GM Food Wars: Science, Risk , and Democracy in World Trade Law David Winickof 0 Robin Grove-White 0 0 David Winickoff, Sheila Jasanoff, Lawrence Busch, Robin Grove-White & Brian Wynne, Adjudicating the GM Food Wars: Science , Risk, and Democracy in World Trade Law, 30 Yale J. Int'l L. (2005). Available at: - Article 3 David Winickoff Sheila Jasanoff Lawrence Busch Robin Grove-White Brian Wynnet INTRODUCTION .............................................................................................................................. BACKGROUND TO BIOTECHPRODUCTS....................................................................................... 86 A . The D ispute ....................................................................................................................... 86 B. The SPS Agreement, Sound Science, andDemocracyin Trade Law............................ 90 SOCIAL SCIENCE AND PRACTICAL EXPERIENCE: LESSONS ON SCIENTIFIC RISK ASSESSMENT IN THE GMO CONTEXT ............................................................................................................................. 93 A. Risk Assessment Is Contingenton Values andPolicyJudgments................................ 94 B. Risk Assessment Depends on Political,Social,and Regulatory Contexts.................. 96 C. Public ParticipationHelps GenerateReliableRisk Assessment .................................. 99 I . Public Contributionsto GMO Risk Assessment in Europe................................. 100 2. Lack ofPublicParticipationin U.S. GMO Risk Assessment.............................. 102 D. Risk SituationsLie on a Certainty-ConsensusContinuum ............................................. 104 RE-ORIENTING THE SPS AGREEMENT: EMBEDDED LIBERALISM AND RISK ASSESSMENT ........... 106 VII. CON CLUSION ................................................................................................................................ 121 f David Winickoff is Assistant Professor of Bioethics and Society at the University of California, Berkeley. Sheila Jasanoff is Pforzheimer Professor of Science and Technology Studies at Harvard University's John F. Kennedy School of Government. Robin Grove-White is Professor of Environment and Society at Lancaster University. Lawrence Busch is University Distinguished Professor of Sociology and Director of the Institute for Food and Agricultural Standards at Michigan State University. Brian Wynme is Professor of Science Studies at Lancaster University. We wish to thank Celia Whitaker, Clara Brillembourg, Michael Bretholz, and others at the Yale Journal of International Law for their outstanding editorial work; Sue Mayer and Claire Marris for their valuable input; and Heather Butterfield for her tireless contributions to this Article. INTRODUCTION In August 2003, the United States, Canada, and Argentina initiated dispute settlement procedures at the World Trade Organization (WTO) against the European Communities (EC) for delaying approvals of genetically modified (GM) crops within its borders.' A dispute settlement panel has convened to settle this matter, European Communities-Measures Affecting the Approval and Marketing of Biotech Products (Biotech Products), and the parties began submitting written complaints in May 2004. The dispute implicates not only technical concerns about barriers to trade but also political questions about democratic participation in the design and operation of the WTO.2 Its resolution will have consequences for the global development of agricultural biotechnology, the democratic regulation of risks in world trade, and, not least, the WTO's very legitimacy as an institution of global governance.3 As the U.S. submission in this case makes clear, the central legal issues in Biotech Products involve the interpretation of important provisions of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement),4 especially those portions concerning "scientific justification" and "risk assessment."5 The latter is a crucial term underpinning the entire free flow of trade in food products under the WTO's science-based disciplines. 6 In Biotech Products, the U.S. Trade Representative has challenged the scientific basis of European Union (EU)7 actions preventing the import of GM crops and food products, alleging that reversals of GM regulatory policy within the EU and its member states illustrate the EU's departure from a fixed body of sound science and constitute "unreasonable" or "undue delay" under the SPS Agreement. 8 The European Commission 9 focuses its argument on the safe harbor provision of SPS Article 5.7-which permits members to impose provisional or precautionary measures under certain circumstances-arguing that at the time of the regulatory decisions in question, the scientific evidence was "insufficient" to perform an "adequate" risk assessment. 10 If the dispute settlement panel decides (...truncated)


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David Winickoff, Sheila Jasanoff, Lawrence Busch, Robin Grove-White, Brian Wynne. Adjudicating the GM Food Wars: Science, Risk, and Democracy in World Trade Law, Yale Journal of International Law, 2005, Volume 30, Issue 1,